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- Unreported Judgment
Connolly v Bellette QDC 38
DISTRICT COURT OF QUEENSLAND
Connolly v Bellette  QDC 38
214 of 2019
7 March 2019 (ex tempore)
7 March 2019
Porter QC DCJ
LIMITATION OF ACTIONS – where applicant seeks relief under Personal Injuries Proceedings Act 2002 (Qld) – where part 1 notice was provided outside statutory period for provision of the notice – whether the applicant had a reasonable excuse for delay in providing the notice – where the applicant had been informed as to the need to provide the part 1 notice and as to the limitation periods applicable – whether the applicant’s inability to obtain speculative legal representation comprised a reasonable excuse for delay in providing the notice – whether, if a reasonable excuse was made out, the court should exercise its discretion to permit the claim to proceed despite expiry of the limitation period – whether the respondent being uninsured was relevant to the discretion – whether the failure to seek relief under s. 43(1) was relevant to the discretion.
Personal Injuries and Proceedings Act 2002 (Qld) s. 9(1), s. 9(3)(a), s. 9(5), s. 18, s. 43(1), s. 59
Douglass v Rocla Pty Ltd  QDC 182
Paterson v Leigh & Anor  QSC 277
Perdis v Nominal Defendant  2 Qd R 64;  QCA 555
Piper v Nominal Defendant  2 Qd R 85;  QCA 557
P G Jeffery for the applicant
D J Murphy for the respondent
Keller Nall and Brown for the applicant
HW Litigation for the respondent
- On 23 January 2019, the applicant, Mr Connolly, filed an originating application in this court, seeking relief, amongst other things, under s. 93(2)(b) of the Personal Injuries and Proceedings Act 2002 (Qld), hereafter, PIPA. On the application, Mr Connolly’s counsel, Mr Jeffery, confined the application to relief under s. 59(2)(b) of the Act. I dismiss that application for the reasons which follow.
- On 27 May 2015, the applicant alleges he was assaulted by the respondent. He alleges the assault occurred during a confrontation at the business office of the respondent. The applicant had gone there, it is alleged, to challenge the respondent about the taking of a vehicle and contents, belonging to him, by the respondent, seemingly by way of some sort of self-help by the respondent. The applicant says, in the course of that confrontation, he was struck, causing personal injury. The details of the alleged assault are not otherwise important to this application. The limitation period for commencing proceedings in respect of that assault expired, at the latest, on 28 May 2018, and possibly on 27 May 2018. The applicant has not yet commenced proceedings. His claim is, prima facie, statute barred. This would not be fatal, however, if he could take advantage of s. 59 of PIPA.
- As is well known, one important part of that Act is the scheme for pre-court procedures contained in chapter 2, part 1. Relevant, to this case are the following provisions.
- Section 9(1) provides for the provision of a notice by the claimant to the person alleged to be responsible for the injury described in that notice, before starting a proceeding in the court. That notice is in two parts.
- By section 9(3)(a), the part 1 notice must be given by, relevantly here, nine months after the incident.
- Section 9(5) deals with failure to comply with the time limit in s. 9(3). It, relevantly, provides that, if a part 1 notice is not given in time, the obligation to provide it continues and when it is provided (necessarily, I observe, late compared to s. 9(3)) it must give a reasonable excuse for the delay.
- Section 18 gives teeth to the requirement for compliance with the provisions relating to the giving of a part 1 notice, which, I observe, is the starting document for the pre-court procedures in part 1 of the Act. Section 18 provides that a failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim.
- Section 59, on the other hand, provides some relief from the application of limitations provisions, where a complying part 1 notice has been given before the end of the limitation period applying to the claim, but proceedings have not been commenced within the limitation period in respect of the claim. Section 59(1) provides that:
If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court, based on the claim, even though the period of limitation has ended.
- However, s. 59(2) imposes limits on when such a claim can be brought. It provides:
However, the proceeding may be started after the end of the period of limitation, only if it is started within –
(a) six months after the complying part 1 notice is given or leave to start the proceeding is granted; or
(b) a longer period, allowed by the court.
- To be clear, in my view, despite some awkward drafting in s. 59, it is plain that s. 59(1) is a necessary pre-condition to the discretion arising under s. 59(2). So much is plain from at least two matters:
- (a)the first is the use of the word “however” to introduce s. 59(2), which, in the context, is plainly conditioning the statement in s. 59(1); and
- (b)further, the reference to “the proceeding” in s. 59(2) must be a reference to a proceeding mentioned in s. 59(1), which meets the precondition under that subsection.
- The applicant asserts a claim for personal injury which accrued on 27 May 2015. He did not purport to provide a part 1 notice at all until 19 April 2018. That was within the limitation period, however, it was outside the period in s. 9(3). The nine months expired under that section on 27 February 2016. Accordingly, the notice was given more than two years too late. The consequence of that delay was that s. 9(5) applied. Accordingly, the applicant’s part 1 notice had to include a reasonable excuse for the delay in serving the part 1 notice. Alternatively, that excuse could be given by separate notice.
- On 18 May 2018, the respondent responded to the part 1 notice through his solicitors, contending it was not a complying part 1 notice because it required, but omitted, a reasonable excuse for the delay. On 24 May 2018, the applicant sought to remedy that defect by providing a notice containing a reasonable excuse for the delay in the form of information provided in his solicitor’s letter. That notice was given within the limitation period by, perhaps, three or four days, depending on when the limitation period expired.
- The notice provided the following as to the reasonable excuse:
Our client instructs that the reason for the late delivery of part 1 of the Notice of Claim form is that he saw numerous other firms however none of them agreed to accept instructions to proceed with this claim on a no win no fee basis.
Our client has seen the following firms in respect of this claim.
- There followed a list of 14 law firms. It is accepted by the respondent that if the reasonable excuse articulated in the notice meets the requirements of that phrase properly construed, then the part 1 notice would be a complying notice provided before the expiry of the limitation period and, accordingly, the discretion under s. 59 would be engaged.
- The applicant must establish two matters before he is able to avoid the consequences of the expiry of the limitation period:
- (a)First, he must establish that the notice given on 24 May 2018 is sufficient to make his part 1 notice a complying notice. That turns on whether it identifies a reasonable excuse for the delay in giving the part 1 claim. That includes, in my view, the failure to give the claim within the time limit specified in s. 9(3) and the failure to give the part 1 claim thereafter until it was given.
- (b)Second, if I conclude that the claim was a complying part 1 claim, the applicant must then persuade the court to exercise the discretion under s. 59(2)(b) in his favour.
The part 1 notice is not a complying notice
- The notice specifying the reasonable excuse for the delay has been set out. It is supported by an affidavit of the applicant. The affidavit can, it seems to me, properly inform and explain the issues raised in the notice, but cannot raise matters outside the scope of the notice. There was no suggestion it did so.
- The matters it relied upon as giving rise to the excuse are as follows: in effect, the applicant sought but could not obtain speculative representation; he swore it was his continuous desire to obtain speculative representation and could not do so; and he did not otherwise have the financial resources to pursue the claim. The last point was not disputed by the respondents, rightly, it seems to me. The real question is whether the evidence sustains the excuse articulated in the notice as to the availability of speculative representation and efforts to obtain it.
- Mr Connolly narrates his efforts to obtain speculative representation in his affidavit as follows.
- First, around 15 September 2015 he sought speculative representation from Gouldson Legal. His dealings with Gouldson are important in this proceeding. Mr Connolly, in his affidavit, swore at paragraph 30 that he spoke to representatives from Gouldson on 15 September 2015 and:
On the same day they provided me a written notice they had declined to act for me.
He then exhibits a letter to which he refers.
- That description of the letter is inaccurate. The letter is in evidence. The relevant part of the letter appears at page 4. After setting out a great deal of detail about victim assistance claims and public liability claims, Gouldson say this:
As we previously stated, you will only be eligible/viable to bring this claim if:
- You can prove that an individual, company, or other legal entity, was negligent;
- That negligence caused your injury;
- And the negligent party can afford to pay you compensation (or has insurance).
Unfortunately, it is too early to determine this. You would need to provide our office with:
- Medical reports stating what your injuries are, and whether you have sustained a long-term or permanent impairment from same;
- Further details of the incident, including the details of your involvement in the incident, the person/s who assaulted you, and their alleged reasons for doing so;
- Details of the police investigations and whether any person/s were charged.
It is likely that we would also need to conduct further investigations once we had received the above information.
- Mr Connolly’s affidavit does not explain why the invitation in that letter was not taken up, or if so, what happened thereafter. Mr Jeffery submitted I should infer that Mr Connolly refused to act because of the general statement at paragraph 28 of Mr Connolly’s affidavit that all firms Mr Connolly contacted refused to act on the speculative basis. He also submitted I might infer Mr Connolly might have concluded from the summary in the letter that Gouldson had refused to act. The summary at the end of the letter states this:
We confirm we have not taken any steps to protect your interests in relation to the above limitations and the requirements at this stage. We confirm that we have not been retained to act on your behalf and have not taken formal instructions from you as yet.
You are free to seek advice from other solicitors should you wish to do so. If you wish to locate other solicitors you can telephone the Queensland Law Society […]
We urge you to seek advice if at any time you are offered a sum of money by way of compensation for your injuries.
We thank you for your inquiry and hope you make an eventual recovery from your injuries.
- Mr Murphy highlighted the “as yet” in that paragraph and contrasted that letter with the out-and-out refusals in the later letters received by Mr Connolly. It is possible, as Mr Jeffery asked me to infer, that he saw the letter as a refusal. It is equally possible, however, and a fair reading of the letter supports this inference, that Gouldson was open to acting. At best, that means that Mr Connolly did not read Gouldson’s letter properly or take up the invitation from Gouldson. There is not any evidence about that.
- In my view, I am unable to draw any inference as to how Mr Connolly’s dealings with Gouldson played out. I do not think the general observation in paragraph 28 or indeed paragraph 29 is sufficient to deal with it. That was an important matter to address on the application, given the terms of this letter and the early date of the consultation a fortiori where one considers the advice given in that letter. In that letter under the heading “Pre Court Procedures for Public Liability Claims” Gouldson said this:
In order to commence a claim for injuries sustained as a result of this criminal act, you must comply with the pre-Court procedures set down in the Personal Injuries Proceedings Act 2002 (as amended). These procedures must be completed before you can file a claim in the Court.
- If you wish to pursue a claim for damages, you must provide a Part 1 Notice of Claim Form to the person you believe in [sic] responsible for your injury occurring (the respondent). This can be found at:
- You must give the Notice within 9 months of the date of the accident or within 1 month of consulting a solicitor, whichever is sooner.
- (a)If you do not provide your Notice within this time limit, you can still give the Notice any time before the end of a three year period, but you will also be required to provide a reasonable excuse for your delay.
- You must then provide a Part 2 Notice of Claim Form to the respondent. This form must be provided before the earlier of these two dates:-
- (a)If you do not provide your Notwo months from when the respondent confirms that your Part 1 Notice complies with the Act;
- (b)three months from the date that you send the Part 1 Notice of Claim Form.
Time Limitations for Public Liability Claims
As mentioned above, pursuant to the relevant legislation a claim for personal injuries in Queensland must be commenced in a court within 3 years of the date on which the injury was sustained or that date that symptoms are first experienced. If a claim is not commenced in a court within this time your right to sue will be lost forever.
- It can be seen from this quote that Gouldson explained in considerable detail the pre-court procedures under the Act and focused on the need to give a part 1 notice within nine months; the exact matter that is the subject of this application. They also provided a website link to the form and gave warning about the general limitation period for personal injuries claims.
- It was submitted by Mr Murphy, and I accept, that this was done in considerable detail and directly articulated. Mr Connolly’s affidavit contains no evidence about this advice: if he read it; if he did, how he responded to it and so on.
- Moving from the Gouldson Legal letter, the next definite consultation in terms of timing occurred around 22 March 2018, nearly two and a half years later, when he approached Murphy’s Law. They declined to act on a speculative basis in writing, but again warned of the impending limitation period and of the pre-court procedures, though in less detail than Gouldson.
- The next definite consultation occurred around 1 May 2018 when Mr Connolly spoke to Maurice Blackburn in Toowoomba. That firm also declined to act on a speculative basis in writing on 4 May 2018. They warned again about the limitation period and referred to the pre-court procedures, again in less detail than Gouldson. I note the approach to Maurice Blackburn occurred after Mr Connolly swears that his current solicitor, that is Keller Nall and Brown, agreed to represent him on 10 April 2018.
- Mr Connolly’s affidavit then says that he:
[…] conversed or consulted with no less than 12 other law firms since the incident, however I have failed to retain written advice from these firms in cases where I was provided with written advice.
- He then goes on to list the firms he conversed with or consulted with “during this period” and lists 12 firms, many of which are well known personal injuries firms. As Mr Murphy points out, there are omissions in the evidence about these consultations. They include: firstly, the ambiguity of what “conversed” or “consulted with” means; next, the lack of any positive statement that he sought representation on a speculative basis and that it was refused by each of these firms; and, importantly, the lack of any evidence as to when in the period, which I infer and accept was the period from the incident to May 2018, he carried out these consultations and conversations.
- Mr Jeffery said that I could at least infer that he sought speculative representation from each of these firms from the general statements in paragraphs 28 and 29, and that they refused him. Paragraph 28 says:
In the months and years following the incident, I contacted a great number of law firms, seeking advice and representation of my claim. All firms save for my current solicitors refused to represent me on a speculative basis.
- Paragraph 29 says:
It was my continuous desire to seek representation on a speculative basis [...]
- Even if that evidence was accepted, it still does not contain any evidence from which I can infer when these consultations occurred, or as Mr Murphy said, what form they took and whether they were seriously pursued or not. Paragraph 45 of the affidavit also does not take it much further. That is a conclusory statement about being “tireless in seeking justice for the damage inflicted upon me” but that no firm would act speculatively. Again, it is too general to be of assistance. Mr Connolly did obtain speculative representation from Keller Nall and Brown on 10 April 2018.
The applicant’s contentions: s 59(1)
- The applicant contends in respect of the question of whether there is a complying part 1 notice for two propositions:
- (a)First, that the delay in providing the part 1 notice is explained by the applicant attempting to obtain speculative representation; and,
- (b)Second, that that circumstance should be recognised by this court as a reasonable excuse for not giving the part 1 notice in time.
- I reject both propositions.
- As to the first, I reject the finding of fact which underpins the submission. On the evidence before me I am not persuaded that an inability to obtain speculative representation is the reason for the whole of the delay. The affidavit, for the reasons I have articulated, begs the question as to what steps were taken, particularly between September 2015 and early 2018 (from when I am willing to infer active steps were underway). I do not consider that the material supports a positive inference that there were continual efforts to obtain representation over the period 2015 to 2018.
- Apart from the evidence about Gouldson and the events in March, April and May 2018, the balance of the evidence is too vague as to what was done and when to demonstrate continuous, much less continuous and diligent, efforts to obtain representation. There is an equally probable inference that there were periods, indeed long periods, where nothing was done. The only positive inference I can draw on the material is that there were efforts in September 2015 and again from early 2018. I do not consider the balance of the delay to be properly explained on the evidence.
- Further, Gouldson made clear what was required for a part 1 notice and provided a link to the document. Mr Connolly gave no evidence as to what he did with that detailed information to protect his interests. He does not swear to an inability to read or complete what was a fairly straightforward form. His position appears to have been that if someone else is not going to take steps to protect his interests for him on a speculative basis then he would do nothing. It seems to me as a matter of fact that another cause of the delay is Mr Connolly’s unexplained failure to take any step of his own accord to protect his position despite being warned of the need to do so and despite being told how to do so.
- I am not satisfied that seeking speculative representation explains, as a matter of fact, the whole delay.
- Even if it did, I do not accept that it is a reasonable excuse. The applicant initially relied on Douglass v Rocla Pty Ltd  QDC 182 for the proposition that inability to obtain speculative representation was a reasonable excuse for delay in delivery of a part 1 notice of claim.
- That decision by Jones DCJ of this court is not relevant to reasonable excuse under s. 9(5). That case was concerned with the discretion under s. 59(2), and, in the paragraphs referred to, with the delay in bringing the s. 59 application on a complying part 1 notice. Further, the facts of the case, set out in , are quite different to the current position.
- The applicant contended in any event that an inability to obtain speculative representation was, as a matter of first principles, a reasonable excuse. I do not accept that as a general proposition. It depends on the particular circumstances of the case. In the circumstances of this case, I do not consider that the applicant has established a reasonable excuse for three reasons.
- First, as I have explained, the affidavit does not establish ongoing or diligent efforts to obtain speculative representation. Mr Jeffery submitted that it did not matter as a matter of law whether the efforts were ongoing, so long as it was established that Mr Connolly would only have obtained representation when he did. Even that I do not accept as an absolute proposition. Whether there is a reasonable excuse for delay will include considering whether the whole of the delay is explained. Where Mr Connolly has not actively sought to pursue his rights for a large part of the limitation of the relevant period, that is itself relevant.
- Second, even if the efforts were ongoing over the period from September 2015, there is another very significant consideration. The proposition advanced by Mr Jeffery for Mr Connolly assumes that it was a reasonable excuse for Mr Connolly’s delay for him to decide he would sleep on his rights, unless and until he obtained speculation representation. I disagree with that proposition.
- Absent some special features, such as Mr Connolly being illiterate, unable to speak English or under some other particular disability or incapacity, it was open to him at any time to seek to advance his rights by his own efforts. There is no suggestion he was under any relevant limitation or disability over the period in question. Mr Jeffery submitted that the only matter he could point to was that Mr Connolly was a truck driver, and that he would have been self-represented. Of themselves, neither comprise a relevant disadvantage, at least in the context of this case.
- As to that, different considerations might intrude where the process involved was unknown to Mr Connolly or a particularly complex one. However, neither is true here.
- As to the former point, Gouldson explained in detail about the part 1 notice and the limitation periods for it. They did so attaching a link to the form. There is no evidence as to what Mr Connolly did about that advice. What is clear is that he was advised what to do and of the risks of not doing so.
- As to the latter point, the part 1 notice, which is all that is required to start the process, is not a complex document. There is no reason to think it could not have been completed by Mr Connolly. Many citizens have to act for themselves in legal disputes. There is no reason to think that Mr Connolly could not have done so in this modest way.
- Third, the considerations I have identified receive some support from authority. Mr Murphy referred me to passages from Perdis v Nominal Defendant  2 Qd R 64;  QCA 555 and Piper v Nominal Defendant  2 Qd R 85;  QCA 557; in that regard Mr Murphy submitted:
- The issue of a reasonable excuse has been considered in a number of Court decisions.
- The respondent is unaware of any decisions in which the applicants failure to engage solicitors on speculative basis has been considered by a Court on the question of reasonable excuse.
- However, the respondent submits that decisions of various Courts regarding legal advice provided to potential claimants is of particular relevance.
- Of particular relevance are the decisions of Perdis v Nominal Defendant  QCA 555 and Piper v Nominal Defendant  QCA 557 which dealt with provisions under the Motor Accident Insurance Act 1994 (Qld) (“MAIA”) similar to the relevant provision under PIPA and considered issues of solicitors advice and conduct.
- s 37(3) MAIA provides, similarly to s 9(5) PIPA that a notice not given within the prescribed time must still be given and must be accompanied by a reasonable excuse for delay.
- In Perdis v Nominal Defendant the claimant consulted a solicitor who gave her wrong advise [sic] about the timeframes for serving a Notice of Claim pursuant to the MAIA on the Nominal Defendant. She later consulted a solicitor who provided correct advice as to the timeframes within which such notice must be given. She provided an explanation for her delay in giving such notice as “the negligence of the claimant’s former solicitor”. The Nominal Defendant conceded and the [sic] Davies JA accepted that,
“the claimant’s own personal conduct was reasonable excusable. She consulted a solicitor within time, followed him up and did everything else that was reasonable required of her. Thus the sole cause of the failure to give the notice within 3 months after the date of the accident was the negligence of the solicitor”.
- In those circumstances the [sic] Davies JA held,
“The sole question which arises in the appeal if leave is granted, as identified by Mr Wilson SC for the Nominal Defendant, is whether, in decided whether a reasonable excuse has been provided within the meaning of s 37(3), it is necessary to consider only whether the claimant’s own personal actions were reasonable excusable in the light of what has occurred, or whether, in circumstances where the claimant retained a solicitor in connection with the giving of the notice, it is also necessary for the actions of the solicitor, insofar as they contributed to the delay, to be reasonable excusable.”
- Davies JA considered a number of decisions in which the claimant had left the matters in the hands of their solicitors who then failed to act appropriately. Davies JA with whom the other judges of the Court agreed held,
“In my opinion that is the way in which s 37 should be construed. That is, the claimant gives a reasonable excuse for the delay if the excuse is that, in sufficient time, he or she entrusted the matter to a person who was reasonably believed to be competent to do whatever was necessary. On the application of that test to the facts here the claimant had on 10 April 2003 given to the Nominal Defendant a reasonable excuse for delay.”
- However, that observation came with a qualification, namely,
“It may be necessary to qualify that general proposition where, after a claimant has entrusted the matter to his or her solicitor, there is something which would cause a reasonable person in the position of the claimant to make further inquiry or take other steps but it is unnecessary to consider any such qualification here for the claimant here did all that could reasonable have been expected of her.”
- In agreeing with the reasoning of Davies JA, it was held by Williams JA,
“Here it is obvious that the claimant was misled by incorrect advice given by the initial solicitor, and in consequence she had reasonable excuse for the failure to comply with the requirements of the Act.”
- The conclusions of the Court of Appeal in Perdis can be contrasted with the decision of the Court of Appeal, given simultaneously in Piper v Nominal Defendant. The majority of the Court of Appeal found that the action of the potential claimant in leaving the matter in the hands of a solicitor where [sic] not, in the circumstances of that case a reasonable excuse for delay.
“ At the material time the appellant was a mature man of 30 years of age though with limited knowledge of legal matters. He clearly recognised that it was important for him to take legal advice and the vital question really is whether or not he took reasonable steps to obtain such advice. In my view having informal discussions with O'Donnell and others in the way that he did it did not constitute taking reasonable steps to obtain legal as to his position. Certainly once he was advised that a common law claim should be made he should have taken steps to ensure that he was given adequate legal advice with respect thereto. A reasonable person in the position of the appellant would have done so.
 For the reasons given in Perdis v Nominal Defendant the appellant is not responsible for omissions made by O'Donnell, a person acting on his behalf; rather, what makes his excuse unreasonable is that he failed to take reasonable and proper steps to protect the limited rights conferred upon him by the Act.”
[Emphasis and footnoting in original]
- Mr Jeffery did not cavil with Mr Murphy’s summary of the authorities. Here, Mr Connolly did not do everything reasonably required of him, as stated by Davies JA in Perdis. Absent a speculative retainer he could have filed the part 1 notice of claim himself.
- Equally, if the person in Piper was found not to have taken sufficient steps where she knew what had to be done but relied on an informal and inadequate retainer to do it, that conclusion would apply a fortiori to Mr Connolly who, as I have said, was not said to be under any disability except being a truck driver (which is not a disability), who had no solicitor acting for him, knew what was required (or at least had been told what was required by Gouldson), had been referred to the Part 1 form, and did not do anything about it.
- These points apply no matter what view one takes of Mr Connolly’s conduct between September 2015 and April 2018. They apply with much more force if one is not persuaded he was active in pursuit of advice for the whole period. Accordingly, I am not satisfied that there was a reasonable excuse for the delay by the applicant in delivering a part 1 claim. The consequence is that there is no discretion enlivened under s. 59(2) and the application should be dismissed on those grounds.
The applicant’s contentions: s 59(2)
- Given that some interesting points arose in argument, and given the possibility I am wrong about my first conclusion, I should express my view on the issue of discretion. I refer to paragraph 12 of Mr Jeffery’s submissions, where he summarised the principles relevant to the exercise of the court’s discretion on a s. 59(2)(b) application by McMeekin J in Paterson v Leigh & Anor  QSC 277 at -:
 Applications of this type have come before the courts on a number of occasions. I have been referred to decisions of the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd (Morrison-Gardiner); Winters v Doyle (Winters); Ward; Cottle v Smith and Gitsham v Suncorp Metway Insurance Ltd.
 The principles that seem to be to emerge from these cases are:
- (a)The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered;
- (b)The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;
- (c)Where an applicant is able to show that the delay which has occurred was occasioned by a “conscientious effort to comply” with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a “dominating consideration”. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;
- (d)Where an applicant is not able to show that the delay was occasioned by “a conscientious effort to comply” with the Act that is not fatal to the application;
- (e)Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;
- (f)The length of any delay is important and possible prejudice to the defendant is relevant;
- (h)Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
- (i)The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration; and
- (j)The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.
- In my view, even if the more generous interpretation of the evidence about seeking representation was preferred, the discretion should not be exercised to permit the proceeding to be brought. These are the reasons.
- First, on even the more favourable view of the facts it would be hard to characterise what has occurred as a conscientious effort to comply with the Act.
- Second, there was a substantial delay in bringing this application. It was not brought until some nine months after the part 1 notice became a complying notice (if that is what happened). That is a considerable period compared to the limitation period of three years. The explanation given by the applicant was given on information and belief. While not objected to by the respondent, it nonetheless was given in the most general of terms.
- While I can accept that ill health may have caused Mr Connolly some difficulties, it is difficult to accept that Mr Connolly pursued this application conscientiously. It was up to him to lead evidence of that, and I did not find the evidence led about that to be persuasive.
- Third, I accept there may be some prejudice to the respondent from the passage of time. Mr Murphy identified four items of specific prejudice. He did not simply rest on Brisbane South Regional Health Authority v Taylor type prejudice.
- The four matters were these:
- (a)A lack of any contemporaneous medical evidence as to the nature and extent of the applicant’s injuries;
- (b)A lack of any medical evidence as to how the alleged injuries impacted on his ability to work since the date of the accident so that any medical opinions provided now would be merely guesswork;
- (c)The complication of a potential medical negligence claim for which the applicant sought legal advice and how that impacts on the current claim; and
- (d)A lack of medical evidence since September 2016.
- Mr Murphy accepted that there was a brief doctor’s report from the day of the assault, and said that submission should have said a lack of “substantial contemporaneous medical evidence”, but otherwise maintained the gravamen of his submissions.
- Mr Jeffery submitted that there was some surprise in respect of these points but given an opportunity to put on further evidence, the applicant did not do so. The evidence of the medical reports which did exist in the current evidence did not falsify Mr Murphy’s points. The onus was on Mr Connolly to deal with these issues.
- Fourth, Mr Bellette is not insured. This is a dispute between two citizens funding their own claims from their own resources. There is no suggestion in the material that Mr Bellette is a wealthy person. Even if there was, however, it seems to me that where persons are called on to defend proceedings against them personally without the benefit of insurance (or, indeed, limited liability obtained in a corporate context) particular attention has to be given to the policy of limitation statutes as recognised by McMeekin J’s summary.
- The Court must be acute to the potential unfairness to a person in that position of the loss of a limitation defence. Here I think the point is relevant, especially where the passage of time and lack of investigation suggests prejudice, or at least additional costs in defending proceedings.
- Further, there is the consideration that Mr Connolly appears unable to meet any order for costs if the proceedings fail. Whilst security could not be ordered against him, at least on the evidence before me, it is quite a different matter to relieve Mr Connolly from a limitation statute and remove a straightforward defence from the armoury of Mr Bellette. This is not of itself a decisive consideration, but it again is one which draws particular attention to the importance of considering the policy of limitation statutes in exercising the discretion in this particular case.
- In my view, the fact that Mr Bellette is not insured, taken with the other matters I have identified in respect of this point, weighs against giving leave.
- Finally, Mr Murphy submitted I take into account the failure to apply under s. 43 of the Act. His primary submission was that this was relevant because an application under s. 43 would have been successful almost as a matter of course. At the least, a s. 43 application does not call for the same balancing of factors as an application under s. 59(2).
- Section 43(1) of PIPA permits an applicant to start proceedings despite failure to comply with the pre-court procedures where there is an urgent need to do so. The impending expiry of a limitation period has been recognised as giving rise to an urgent need. It can be accepted that such an application in this case would have had very strong prospects of success. I did not understand Mr Jeffery to contend to the contrary.
- Mr Murphy submitted the applicant could and should have brought such an application based on the chronology. He pointed to this chronology: on 19 April 2018, the part 1 notice of claim was given to Mr Bellette’s solicitors by Mr Connolly’s solicitors. On 18 May 2018, at least nine days before the expiry of the limitation period, HW Litigation for Mr Bellette wrote stating: that under s. 12(2)(a) of PIPA, their client was not satisfied the claim was compliant; that pursuant to s. 12(2)(b) of PIPA, their client did not waive compliance; and identified that the problem in effect with the claim was the lack of a reasonable excuse for delay under s. 9(5).
- It went on to say that their client allowed a further period of one month to address those matters pursuant to s. 12(2)(c). It is relevant to note that that period is the minimum period required by statute and, whether that statement was there or not, it would have applied to Mr Bellette. On 24 May, a Thursday, Mr Connolly’s solicitors responded with the reasonable excuse notice I have described. Time then expired on Monday, 28 May 2018.
- On 22 June 2018, HW Litigation wrote to Keller Nall and Brown rejecting the reasonable excuse. Mr Murphy submitted on these facts that the applicant simply took the chance its reasonable excuse would be sufficient, and chose not to seek s. 43 relief which would almost certainly have been granted. Mr Jeffery on the same facts submitted that the respondent had some involvement in that outcome because in its 18 May letter it referred to a one month period, because they did not respond to the reasonable excuse letter before the expiry of the limitation period, and indeed did not respond until 22 June.
- I reject Mr Jeffery’s points to the extent they suggest that the respondent had any role whatsoever in any failure to bring a section 43 application before the expiry of the limitation period on 27 or possibly 28 May. First, the 18 May letter gave sufficient time for there to be a response considered and given before the expiry of the limitation period. Second, HW Litigation had to specify the one month period which surely was known to Mr Connolly’s solicitors. Next, Mr Connolly’s response was given only two business days before the expiry of the limitation period, and it was not reasonable in my view to expect HW Litigation would respond approving or not approving of the proposed reasonable excuse within two clear business days, and to rely on that assumption in not bringing a section 43 application. Finally, any delay in responding by HW Litigation after the expiry of the limitation period was irrelevant to any judgment about s. 43.
- That is not the end of the matter, though. The place of s. 43 PIPA in the discretion was said by Mr Murphy to be twofold.
- First, the fact that this application could have been avoided if the applicant had applied under s. 43 was said to be relevant to the exercise of the discretion. I reject that. The two rights in the statute are not conditional on each other, and I can see no reason to read the rights conferred by either of them down by reference to the other.
- Second and more persuasively, at least in principle, Mr Murphy made this submission: to the extent that the refusal of leave might result in Mr Connolly losing the benefit of a good claim, there may be a claim for a remedy against his solicitors in respect of that loss for failing to bring an application under s. 43. That would be a harsh outcome in the circumstances of this case, although I accept that is irrelevant to Mr Bellette’s position.
- However, for this to be a significant factor in exercising the discretion under 59(2) I would have had to have been persuaded that the case against the solicitors for the applicant was a strong one. I cannot reach that view on the material. All I can say is that there is some possibility a claim might be vindicated in that way but, frankly, in all the circumstances it seems rather speculative. Inventive, though the point was, I do not think on the facts of this case it is a factor of any weight and I put no weight on it.
- Nonetheless, for the reasons I have already given, I would have dismissed the application on the exercise of my discretion even if I was persuaded that a compliant claim had been given, which, as I have said, I am not.
- Published Case Name:
Connolly v Bellette
- Shortened Case Name:
Connolly v Bellette
 QDC 38
07 Mar 2019